Employment Law FAQ

Read more about our Employment Law Practice here.

Can my employers ask about my sexual orientation?

The Civil Rights Act of 1964 prohibits discrimination in employment on the basis of sex. Over the years, courts have held that this extends to discrimination based on sexual orientation, as well. This means it is illegal for an employer to discriminate against any employee on the basis of sexual orientation. Discrimination can occur in hiring decisions, work assignments, scheduling, disciplinary action, or firing decisions. The simple act of asking about an employee’s sexual orientation is usually not an act of discrimination in itself, but this information can lead to other discriminatory actions that are illegal. Employees should be very cautious any time an employer begins asking about sexual orientation in the workplace.

Can my employer assign me work based on my age?

Age discrimination in employment is illegal once an employee has reached the age of forty. This means that your employer cannot discriminate against you on the basis of age after your fortieth birthday. Discrimination is defined by a change in the terms and conditions of employment. So if you are assigned different tasks for a single shift, the essential terms and conditions of your employment have likely not changed. But if you are permanently assigned to a less convenient shift, or more physically demanding work, or assigned to a department with fewer opportunities for advancement, these changes could affect the overall terms and conditions of your employment.

Can I get fired for reporting discrimination or harassment?

In general, employees cannot face retaliation for reporting illegal activities in the workplace to an employer. But employees can be left without legal protection if they report these acts to the media rather than going directly to the employer to rectify the problem. Employees can also face discipline for disclosing trade secrets or proprietary information to outside parties. This is why it is so important to consult with an attorney before reporting any type of illegal activity in the workplace. A lawyer will help you report the right information to the right parties – and ensure that you do not face illegal retaliation for doing so.

What is illegal retaliation?

An employer can take many actions that are considered illegal retaliation. The most obvious is an outright firing. In most situations, it is illegal for an employer to fire an employee for reporting illegal conduct in the workplace to the proper authorities. But terminating employment is not the only way an employee can face retaliation. The employee might face a pay cut or demotion. The employer could assign them tasks or schedule them for a shift that is less desirable. If an employee is subjected to changes in the “terms and conditions” of employment because they made a protected report, they have been subjected to illegal retaliation.

How is whistleblowing defined?

There is not one set whistleblower law under state or federal law. Instead, whistleblower protections come from a series of employment statutes. These statutes will set a rule for employers to follow, then give specific protections to employees who report violations of the statute. Whistleblower protections only extend to employees who disclose the right information to the appropriate authorities. For example, the Sarbanes-Oxley Act of 2002 (SOX) was passed to ensure financial responsibility in the wake of the Enron scandal. Employees are protected when they report SOX violations to the appropriate financial authorities (for example, the Securities and Exchange Commission). But if an employee were to disclose confidential financial information to the media, this act would not be protected, and the employee could still be fired. This is why it is important to consult with a whistleblower attorney before reporting any illegal activities your employer is engaged in.

What should I do if I become disabled?

There are many forms of disability. Some disabilities will prevent you from ever being able to work again. Some will incapacitate you for a time but allow you to return to full-time employment once you have recovered. Other disabilities will allow you to maintain part-time employment. All of these different situations give you different employment rights. It is important to consult with a disability lawyer about your unique situation so that you do not miss out on disability benefits to which you are entitled. You may also be entitled to have “reasonable accommodations” in your workplace under the Americans With Disabilities Act.

Can I get fired for becoming disabled?

The Americans With Disabilities Act requires employers to make “reasonable accommodations” for employees with disabilities. This has led to a wide range of court cases that consider what, exactly, is “reasonable” to expect an employer to do. Reasonableness is highly dependent on the specific facts of your job. For example: taking extra breaks might be reasonable in an office setting, where you can catch up on work at your own pace. But in a highly structured manufacturing plant, an extra break might cost your employer thousands of dollars in lost productivity. This is less reasonable. So long as you can still perform the “essential functions” of your job (with or without reasonable accommodation), your employer cannot fire you just because you have become disabled.

Can I get fired for taking a medical leave of absence?

Medical leaves are protected under both the federal Family Medical Leave Act and the state California Family Rights Act. If you take medical leave under the provisions of these laws, you cannot be fired for exercising your rights. Your employer might also offer medical leave or paid time off as part of your employment contract. In this case, you have a contractual right to take leave as set forth in the agreement. But if you do not properly document that your leave is being taken under these laws, your employer may be allowed to fire you for taking an extended leave of absence. Be sure to get legal advice before you take any leaves of absence.

What is the California law on overtime pay?

California requires overtime pay for non-exempt employees who work more than eight hours in a day or forty hours in a week. (Exempt employees are not covered by the Industrial Welfare Commission Orders. Salaried employees are usually exempt from overtime pay requirements.) Overtime pay is 1.5 times your regular hourly rate.

What do I do if my employer refuses to pay me overtime?

If you believe you are not receiving overtime pay that you are owed, it is important to take action sooner rather than later. (The longer an employer gets out of overtime pay, the harder it can be to collect what you are owed.) An employment lawyer can help you determine the best strategy for recovering the overtime pay you are owed. It is critical that you have clear documentation of exactly what hours you should have been paid overtime for. Keep detailed records about all the hours you have worked.

What do I do if I can’t take or I’m not allowed to take my breaks?

Non-exempt employees (which includes most hourly workers) are entitled to a thirty-minute meal break if they work more than five hours a day. These workers are also entitled to a ten-minute rest break for every four hours they work. Consult a lawyer if you have questions about how these breaks are calculated or if you have been prohibited from taking your breaks.

What do I do if I feel I’m being discriminated against for having an accent?

Discrimination based on an accent can be a form of prohibited discrimination on the basis of your national origin. There are very few instances where an employer will have a legitimate reason for attacking an accent. For example, an actor might need to give a character a particular accent, and the employer would have a legitimate reason to require the actor not to use his or her usual accent. But other than this, there are very few jobs that cannot be accomplished successfully without attacks on your accent. Consult a lawyer about any possible discrimination you are facing because of the way you speak.

Can my employer forbid me to speak another language at work?

In general, employees are allowed to speak their native languages at work, so long as it does not interfere with the employer’s normal business operations. For example, customer service representatives might need to speak English with their customers. But this does not mean that you cannot speak another language in the workplace during your breaks. Employers who forbid other languages from being spoken can be liable for discrimination. The law prohibits employment discrimination based on an employee’s country of origin, and an attack on the language of that country can be a prohibited form of national origin discrimination.

What are some examples of age discrimination?

Employers are usually savvy enough not to tell an employee that he or she is being treated differently because of their age. But this does not mean that age discrimination is not occurring. If you are given fewer opportunities for advancement, or assigned to a lower-paying position, or subjected to unfair discipline, these can all count as age discrimination. Even jokes about your age can become discriminatory (if they are pervasive and offensive enough to actually change the conditions of your employment). There are many ways that age discrimination can occur, so be sure to consult with an employment lawyer about your unique situation.

What is an “at-will” work state?

In an “at-will” state, employment is at the will of both the employer and employee. Either party can terminate the employment at any time for nearly any reason. (Employers are, of course, still prohibited from firing employees on the basis of race, religion, gender, disabilities, and other protected categories.) At-will employment makes it easier for employers to fire and lay off their employees, so these laws generally favor employers.

What do I do if my employer refuses to pay for mileage reimbursement?

Under federal law, employers are not required to reimburse employees for mileage. California law does, however, require reimbursement anytime an employee is required to use their personal vehicle for work-related activities. An attorney can help you recover the mileage reimbursement that you are owed.

What is national origin discrimination under Title VII?

The Civil Rights Act prohibits employers from discriminating against employees based on their country of origin. Discrimination can occur even if the employee is not actually from that country, but the employer believes they are and discriminates against them on that basis. Most employers do not blatantly tell employees they are being treated differently because of the country they came from. Instead, you might be treated differently because of an accent or clothing. You might be subjected to comments or gestures that create an offensive work environment. Any time you suspect you are being treated differently, you should get legal advice about your right to be free from discrimination on the basis of the country you (might have) come from.

What is ADEA?

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees over the age of forty from being discriminated against in the workplace. Discrimination is any act that affects the terms and conditions of a person’s employment. It includes the decision to hire or fire a worker, but it also includes pay, disciplinary acts, work assignments, and opportunities for advancement. Even harassment can be considered discrimination if it is offensive and pervasive enough to change the conditions of your employment.

What’s the difference between being fired and being laid off?

Being fired and being laid off both result in the termination of your employment. The difference is who was at fault. Firing is an employee’s fault, while layoffs are the company’s fault. For example, an employee who steals can be fired, but if the company must reduce its workforce to cut costs, that would be a layoff. If you are fired, you will not be eligible for unemployment benefits. Firing also makes it more difficult to explain the situation to future employers. These are two critical reasons why it is better to be laid off than fired. Both layoffs and firing can be a pretext for a wrongful termination that is prohibited by law. An employment lawyer can advise you of your legal rights to unemployment benefits and wrongful termination remedies in either situation.